There has been a lot of buzz recently about “ban the box” initiatives prohibiting employers from asking job applicants about their criminal records. Proponents of these initiatives argue that employers should not consider an applicant’s old or minor criminal record to deny job opportunities. On February 16, 2016, Pennsylvania took a different approach to this conundrum when Governor Wolf signed Senate Bill 166 into law.
The new law limits information that is released as part of employment-related criminal background checks in two ways. First, it requires law enforcement agencies to remove records of arrests or the filing of criminal charges where at least three years have elapsed from the time of the arrest, no conviction occurred, and there are no pending proceedings seeking a conviction. This requirement won’t have much of an impact on the hiring process; it only conceals an individual’s record of arrests that do not lead to conviction. Pennsylvania employers are already prohibited from rejecting an applicant because of an arrest without a conviction.
The second change implemented by the new law is farther-reaching. Individuals with criminal records can now petition their county’s Court of Common Pleas to enter an order granting limited access to their criminal record. In order to obtain such an order, a person must be either free from arrest for 10 years, or released from incarceration for 10 years, whichever occurred later. The order will direct law enforcement agencies to withhold any information relating to second or third degree misdemeanor convictions and ungraded offenses that carry a prison term of less than two years. It will be binding on all state and local law enforcement agencies in Pennsylvania. Police agencies will still be able release information regarding misdemeanor convictions for witness intimidation, intimidation or obstruction in child abuse investigations, and information relating to sex offender registration status. Felony convictions will also be included in criminal history reports, regardless of how long ago they occurred.
The implications for employers are obvious; even if a criminal background check is performed, some or all of an applicant’s criminal history may not be provided. Under the new law, individuals will be able to prevent employers from gaining access to misdemeanor convictions relating to offenses such as DUI, drug possession, reckless endangerment, retail theft, and others. For example, a retailer who has a policy of rejecting applicants with a history of retail theft may now not be made aware of an applicant’s retail theft conviction if the applicant obtained an order granting limited access to his or her criminal record.
Unless prohibited from doing so by local ordinances, Pennsylvania employers may still continue to require job applicants to submit to criminal background checks. Under the new law, however, they may not receive as much information about an applicant’s criminal history.